Bowers, R (on the application of) v First Secretary of State & Anor

MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act"), to quash a decision of an inspector appointed by the first defendant to refuse planning permission for permanent living quarters for travelling show people and storage of equipment at 1 Manor Way, Buckles Lane, South Ockendon.

The Inspector's decision is contained in a decision letter dated 19th May. The appeal was determined upon the basis of written representations and after the Inspector had made a site visit on 15th April 2003.

The application for planning permission had been made on 11th January 2001 and was refused on 20th June 2002 for three reasons, which were, in essence, that the proposed development was contrary to Green Belt policy, would set an undesirable precedent, and would be contrary to the objectives of a Landscape Improvement Area as shown on the Thurrock Borough Local Plan.

The material placed before the Inspector by the claimant was limited to her grounds of appeal and a letter from a hospital. The grounds of appeal were very short indeed, as follows:

The letter from the hospital was dated 12th July 2002 and confirmed that the claimant had attended the hospital's Accident and Emergency Department on 11th March 2002:

In its written statement the second defendant responded to the appeal saying inter alia that the issues in the case separated into two. Firstly, there was the general need for showpeople's accommodation in the locality and, secondly, the personal circumstances of the appellant. Dealing with the first of those issues: the council explained that it had designated permanent quarters for showpeople in the Borough Local Plan and this had led to an influx of showpersons so that:

The council referred to an inspector's decision in March 2001. The Inspector had granted temporary planning permission for three years to enable the council to consider the extent to which provision for showpeople ought to be met through the UDP. The Inspector, in his decision letter, dated 26th March 2001, had made it clear that this was simply a temporary expedient for three years and there should not be a second temporary permission.

The council commented upon this in its statement to the Inspector in the present case:

The council then argued that since the development was inappropriate development in the Green Belt permission should not be granted, even temporarily, unless the personal circumstances of the appellant amounted to very special circumstances. In its statement the council contended that there were no personal circumstances which amounted to very special circumstances. It said inter alia:

The council's statement then went on to deal with the claimant's statement that she did not want to be separated from her granddaughter and also her statement that she had lived on the site for 3 and a half years.

In addition to making the point that the occupation had been without planning permission, the council said:

The claimant placed no further representations before the Inspector. In particular, there was no challenge to anything that had been said in the second defendant's written statement.

That was the background against which the Inspector had to determine the appeal. His decision letter began by noting that the site was within the Metropolitan Green Belt and the Thameside Landscape Improvement Area. He therefore defined the two main issues in the appeal as:

It is not submitted by Mr Cottle, who appears on the claimant's behalf, that the Inspector failed to correctly identify the main issues. Having identified the issues the Inspector then dealt with the development plan and other planning policies. He referred to the policies which dealt with the Green Belt, both locally and nationally, and to policy H14 in the local plan:

The Inspector also referred to circular 22/91 which:

In his reasons the Inspector first described the site and surroundings. He then dealt with the question whether the proposal would constitute inappropriate development in the Green Belt and concluded that it would and, therefore, that it would, by definition, cause harm to the Green Belt and conflict with the objectives of PPG2 and Local Plan Policy GB1. There is no challenge to his conclusions in this respect.

The Inspector dealt with the Landscape Improvement Area in paragraph 12 of his decision letter, and his opinion that the caravans and temporary buildings which currently occupy the site have an unsatisfactory appearance in the context of the open landscape and thus cause significant harm to the character and appearance of the area, is not challenged.

The Inspector dealt with other considerations in paragraph 13. The council, it will be recalled, had been concerned that a grant of planning permission would set an undesirable precedent. The Inspector, while acknowledging that applications should be considered on their merits, said that he nonetheless shared the council's concern in this case:

The challenge relates solely to the manner in which the Inspector dealt with the issue of very special circumstances. He dealt with that in paragraphs 9 to 11 as follows:

The claim form and supporting witness statement contained information about the claimant and her family that had not been placed before the Inspector. Although the case was put in a number of different ways, both in the grounds and in Mr Cottle's skeleton argument, the underlying contention advanced on behalf of the claimant is that the Inspector's conclusions, that the effects of refusing planning permission on the claimant's health and the schooling of her grandchild were not very special circumstances, were based upon the premise that the claimant could find somewhere else to live where comparable health and educational facilities would be available. It was submitted that this was simply an assumption on the part of the Inspector for which he had no evidence.

Alternatively, the Inspector failed to explain why he reached the conclusion that alternative accommodation would be available and failed to make any relevant findings of fact in relation to this underlying premise. In consequence he failed to carry out the necessary balancing exercise under Article 8.2 of the European Convention on Human Rights. It was further submitted that it was necessary, in carrying out the balancing exercise, to look at the claimant's personal circumstances in the round, rather than to disaggregate them, and to consider whether each, individually, amounted to a very special circumstance. It was submitted that in paragraphs 10, 11 and 12 that was what the Inspector had done.

In my judgment that is not a fair reading of the Inspector's decision. The grounds of appeal before him had raised only two matters. The claimant's health and her granddaughter's education. He therefore dealt with those two matters. Initially, he dealt with them separately for the purposes of clarity, but having done so there is nothing to suggest that he did not have regard to both of them (since he had just specifically identified them in paragraphs 9 and 10) when reaching his conclusion in paragraph 11 that there were no very special circumstances sufficient to outweigh the harm that would be caused to the Green Belt.

In truth, given the manner in which those two circumstances were presented to the Inspector, his conclusion is not in the least surprising. Whilst one has sympathy for the claimant it is very difficult to see how her circumstances, as described in her grounds of appeal, could have amounted to special, let alone very special circumstances for the purposes of Green Belt policy.

That leads on to the difficulty which underlies the whole of Mr Cottle's submissions. An inspector deciding an appeal is obliged to consider the cases advanced to him. He is not obliged to rout around to see whether there might be any new points that have not been advanced by the parties or any new evidence that the parties have not chosen to place before him.

I accept that if factors that would be relevant to Article 8 are mentioned then the Inspector should carry out the necessary balancing exercise, even if Article 8 has not been referred to. The level of detailed reasoning that will be required will, of course, depend upon the material that has been placed before the Inspector. But in the present case the Inspector did consider the only two factors that the claimant had mentioned which might have been relevant under Article 8, and plainly did carry out a balancing exercise when he considered whether they amounted to very special circumstances which would outweigh the harm done to the Green Belt.

In support of his submission that the Inspector was obliged, in effect, to carry out further investigations, Mr Cottle referred to the R v Islington London Borough Council ex p Thomas [1997] 30 H.L.R. page 111. The position in that case was wholly different. It was concerned with the duty placed by the Housing Act 1996 upon housing authorities to make such enquiries as are necessary in order to satisfy themselves of certain matters.

In the present case we are concerned with an inspector who is not dealing with matters at first instance. He is appointed to decide an appeal. In those circumstances he can reasonably expect that the parties will put their best foot forward when making their representations to him, whether orally or in writing.

I sympathise with the claimant's position. It is plain that she made her appeal without the benefit of any professional advice, but the fact remains that she did not counter the material which the second defendant had sent to the Inspector in its written statement. The onus was upon her to establish that there were indeed very special circumstances which justified granting planning permission for this inappropriate development in the Green Belt. She did not even assert that if planning permission was refused no alternative site would be available, much less did she give any evidence in support of such a proposition. For example, the Inspector was not provided with any information as to whether or not she had searched for alternative sites.

Mr Cottle did his very best to make bricks with a complete absence of straw. He submitted that the material in front of the Inspector was not restricted to that coming from the claimant, it included the material coming from the second defendant. I agree, but it is necessary, if one is to look at the material coming from the second defendant, to look at the whole of that material and not simply to cherry pick items from it in order to construct a case that was not advanced to the Inspector.

The cherries plucked out by Mr Cottle from the material supplied by the second defendant came from the officer's report recommending refusal of planning permission. That report, of course, predated the council's statement prepared for the purposes of the appeal. The latter document represented the council's most up-to-date position.

The officer's report, recommending that planning permission should be refused, was prepared for the second defendant's development control and regulatory committee on 19th June 2002. The report referred to the fact that:

The report continued:

The report considered the implications of the Inspector's decision to grant planning permission in March 2001 for a temporary three year period, in respect of additional land, which had been subjected to "the mass incursion of showpeople" and said this:

Mr Cottle sought to rely upon a reference in the Inspector's decision letter, dated 26th March 2001, to the effect that showpeople found it difficult to obtain sites. He also referred to the statement in Circular 22/91 to the effect that showpeople experience difficulty in obtaining sites. He sought to construct from these references an argument that there were no sites in the locality to which the claimant could go.

That, in my judgment, is simply to cherry pick from the report. It is plain, if one reads the report as a whole, that the officer was saying that so far as policy H14 in the local plan was concerned the local plan allocation represented more than adequate permanent accommodation for local showpeople and that further accommodation was not justified. So far as the additional land that had been invaded by the mass incursion was concerned, the officer was saying that given that a three year permission only had been granted for this land, it would be inappropriate to grant a further permission and that the land was not needed for the purposes of meeting the needs of local showpeople.

The decision letter, dated 26th March 2001, and indeed Circular 22/91 were not even mentioned, much less relied upon, by the claimant in her grounds of appeal. In my judgment it is far too late to seek to rely upon them now as the basis for a case on the planning merits that was not placed before the Inspector.

In any event, the most recent statement of the council's position was set out in its written statement, extracts from which I have read. In that statement the council said, in terms, that the claimant had submitted no evidence that the land was required for the proposed use and also that there was no reason to believe that if she was in need of healthcare it could not be maintained if she was to live in a different location.

It further contended that her circumstances were very different from those of the typical showpeople to whose needs Circular 22/91 was addressed. Indeed, it doubted whether it would be appropriate to consider the claimant's family as showpeople.

Whether those doubts were or were not justified the fact remains that they were not disputed by the claimant in any further written representations. Moreover, in expressing its doubts as to how long the claimant had lived at the site the council made the point that there did not appear to amount to any great economic or social bond to the locality. Again, this was not disputed in any further representations.

Given the way the parties chose to present the matter to the Inspector, it is hardly surprising that he decided as he did. Mr Cottle, in essence, seeks (a) to reverse the onus which lies upon the claimant to demonstrate that there were indeed very special circumstances which justified the grant of planning permission in this case; and (b) to advance a case on very special circumstances that was not placed before the Inspector by the claimant. Whilst I sympathise with the claimant it is simply too late to advance such arguments. This is not a court of appeal on the merits.

For these reasons this application must be dismissed.

MR MAURICI: My Lord, the claimant has a Community Legal Funding Certificate so, my Lord, I would simply seek an order for costs, subject to assessment under the Community Legal Funding Regulations, which I believe is a standard order.

MR JUSTICE SULLIVAN: Yes, you cannot resist that?

MR COTTLE: My Lord, no, indeed not.

MR JUSTICE SULLIVAN: Right, then application dismissed with that order.

MR COTTLE: My Lord, there is one further matter. As you will be aware, in relation to appealing, the question is whether or not a 288 appeal has to go to the Court of Appeal anyway or whether --

MR JUSTICE SULLIVAN: I do not think so, I think it is a 289 -- I cannot think why --

MR MAURICI: I think it is because 288 is an application and 289 is an appeal. It is a bit bizarre, but that is the position.

MR JUSTICE SULLIVAN: I think it is a ridiculous position. But, anyway, the answer is you do not need to have to go to the Court of Appeal, you may ask me. Do not be too encouraged by that observation, but by all means ask.

MR COTTLE: No, I feel I must ask you.

MR JUSTICE SULLIVAN: Yes, of course.

MR COTTLE: The simple point is that I addressed you in relation to that housing case with a proposition that is set out in Lord Diplock's speech in the Thameside case, whether or not the decision maker asked himself the right questions and took reasonable steps to acquaint himself with the relevant information. There is no routing around that is suggested was necessary here, given that the information before the Inspector included the conclusion by the Secretary of State that there is little prospect of finding suitable alternative sites.

It is just that that point, whether you have a disabled, or a blind, or a deaf applicant, what is the duty of the decision maker in terms of the routing around? When is the line to be drawn between mentioning a matter and it being already before the Inspector, because, of course, they are in possession of the significant planning matter contained within the Circular, which is a material consideration anyway.

So, clearly if a claimant does not have to mention the Circular which they are in possession of, neither do they have to mention the finding by the Secretary of State that there is little prospect of finding a suitable alternative site. It is in that context that the submission is made that they have to address the relevant question which, I think my Lord accepted, did underpin the way in which the Inspector dealt with the very special circumstances which was to the effect that they could be met from a different site.

MR JUSTICE SULLIVAN: Yes, thank you very much Mr Cottle.

MR COTTLE: I think that there is a point there of public importance in relation to the role of the Inspector where something is not mentioned, but it is still before them.

MR JUSTICE SULLIVAN: Thank you. I need not trouble you Mr Maurici. I am afraid, Mr Cottle, notwithstanding those elegant submissions, I remain of the view that there is literally no straw at all here. It is a miracle you have made so much of a brick as you have. So I refuse permission. I think that is it, is it not?

MR COTTLE: My Lord, the simple point is that in relation to the timing of the appeal: my instructing solicitors pointed out that there is a difficulty if a transcript is not available and yet the deadline for lodging the notice is expiring, as it would within 14 days. So what I would ask for is an extension of time for appealing to the Court of Appeal beyond the 14 days.

MR JUSTICE SULLIVAN: Well, you have been here listening, so you can formulate a point provisionally. I will just check with the shorthand writer. (Pause)

Yes, the shorthand writer is telling me, which was really confirming my experience, that these things generally come back to me in a week. I generally turn them round on the same day. You will be able to frame your grounds, provisionally, subject to seeing the final decision.

MR COTTLE: Indeed. Well, I just ask in terms of the public funding. We would only have 7 days to turn it round once we did have the transcript.

MR JUSTICE SULLIVAN: I see, I am so sorry, I think I am not with you. You have public funding to come up now, you would have to persuade them to --

MR COTTLE: In the context of the miracle point.

MR JUSTICE SULLIVAN: Yes, yes.

MR COTTLE: That is probably something that the transcript --

MR JUSTICE SULLIVAN: You would need a transcript.

MR COTTLE: -- they would need to have before them.

MR JUSTICE SULLIVAN: I can see there might be particular difficulties in that. I am prepared to give you -- what does Mr Maurici say?

MR COTTLE: 14 days after receipt of the transcript, my Lord.

MR MAURICI: My Lord, I would prefer your Lordship gave 28 days from today. That would allow sufficient time for the transcript and that would give us a certain cut off point, because, my Lord, I am conscious that there is reference to the Council taking enforcement --

MR JUSTICE SULLIVAN: Yes, there is.

MR MAURICI: So, my Lord, in those circumstances, 28 days from today would be sufficient time.

MR JUSTICE SULLIVAN: That will certainly meet the bill.

MR COTTLE: Certainly with the assurance that the transcript should be available anyway within 7 days.

MR JUSTICE SULLIVAN: I am minded actually to give you 21 days rather than 28. 28 is nicer, since Mr Maurici has offered you 28 I will give you 28. So 28 days from today. I extend time for appealing or seeking permission from the Court of Appeal to appeal to 28 from today.

MR COTTLE: I do not need to seek expedition of the transcript?

MR JUSTICE SULLIVAN: No, you will not in those circumstances.

MR COTTLE: I am obliged.